From a recent update on Baha’is Online I learned that on December 30th 2010, the 7th Circuit Court of Appeals has denied a petition made by the National Spiritual Assembly of the Baha’is of the United States to rehear the the case that was decided against them.

For back ground information on what this entails, please see the previous discussions on this topic:

• US NSA Loses Court Case Against Orthodox Baha’is
• Appeal Court Decision: US NSA Loses (Again)

The only option for the NSA is to accept the decision and to move on, cutting its losses. Or they could file an appeal to the US Supreme Court. The first hurdle in this process is called a certiorari. Going to the Supreme Court isn’t as simple as Hollywood movies or your favorite incarnation of “Law & Order” would have you believe.

To provide some basic legal background here’s an excerpt from wikipedia:

In the United States, certiorari is most often seen as the writ that the Supreme Court of the United States issues to a lower court to review the lower court’s judgment for legal error (reversible error) and review where no appeal is available as a matter of right. Before the Evarts Act, the cases that could reach the Supreme Court were heard as a matter of right, meaning that the Court was required to issue a decision in each of those cases. As the United States expanded in the nineteenth century, the federal judicial system became increasingly strained, with the Supreme Court having a backlog of years. The Act solved these problems by transferring most of the court’s direct appeals to the newly created Circuit Courts of Appeals, whose decisions in those cases would normally be final. The Supreme Court did not completely give up its judiciary authority, however, because it gained the ability to review the decisions of the courts of appeals at its discretion through writ of certiorari.

Since the Judiciary Act of 1925 and the Supreme Court Case Selections Act of 1988, most cases cannot be appealed to the US Supreme Court as a matter of right. A party who wants the Supreme Court to review a decision of a federal or state court files a “petition for writ of certiorari” in the Supreme Court. A “petition” is printed in booklet format and 40 copies are filed with the Court. If the Court grants the petition, the case is scheduled for the filing of briefs and for oral argument.

A minimum of four of the nine Justices are required to grant a writ of certiorari, referred to as the “rule of four”. The court denies the vast majority of petitions and thus leaves the decision of the lower court to stand without review; it takes roughly 80 to 150 cases each term. In the term that was most recently-concluded as of 9 June 2009, for example, 8,241 petitions were filed, with a grant rate of approximately 1.1%

I sincerely hope and pray that rationality returns – even if by a miracle – to the decision making process and this matter is left where it is. It should never have been taken up in the first place since as I’ve mentioned repeatedly, the word “Baha’i” is in the public domain, just as is the word “Christian” or “Jew”. The US justice system does not trample on such an important issue as freedom of speech and freedom of conscience (and religion). So to expect them to side with the US NSA is to make a tragic mistake and to compound what has already been an embarrassing and rather expensive legal adventure.

Note that while based on the pattern of previous petitions there is about a 1% chance of being granted, there are two forms of petitions: in forma pauperis (IFP) which means that the person does not have the necessary funds or paid, that is, non-indigent. For the paid, the historical approval rates are higher, at approximately 4%. The historical IFP approval rates are extremely low at 0.5%. But that is just the beginning. If the petition is granted, what will then take shape is an extremely lengthy and even more expensive legal battle at the highest court.

The filing fee for the certiorari is $300 but the legal fees to prepare a proper petition run from four to five digits. If the US NSA wins the Supreme Court “cert lottery” and the case proceeds, they will actually have lost as the costs could escalate easily into hundreds of thousands of dollars. And there is absolutely no guarantee or assurance that at the end of this all they will not be handed yet another humiliating and costly defeat.

I don’t pretend to know the Will of God nor to be a legal expert but both reason and the law is clear in the matter. Even before the decision was made by the 7th Circuit Court of Appeals, I wrote that the US NSA had no case whatsoever.

So I hope that the US NSA or whoever at the UHJ/ITC that is calling the shots knows about the importance of cutting your losses. If this were Vegas, it is well past the time to stand… otherwise, this is going to be one very expensive hand of Blackjack.

Otherwise, if the US NSA decides to continue this folly, the petition will join thousands of others in the cert pool. Then the waiting begins to see if it will be among the 1% or so that are accepted. For the legal beagles out there, you may be interested in learning about “certworthiness” a slang term used in legal circles to refer to cases that have at least a chance in being granted a hearing. Among the characteristics that make a petition “certworthy” are:

• the decision below conflicts with decisions of one or more federal courts of appeals or state courts of last resort on an important issue of federal law
• the court below decided an important federal question in a way that conflicts with rulings of the Supreme Court
• the court below decided a question of federal law that is so important that the Supreme Court should pass upon it even absent a conflict
• (a category into which very few grants fall) the court below “so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power.”

One of the most important elements is to show that the matter is of ‘national importance’. I fail to see how at least four Supreme Court judges will see this matter as such.

The US NSA has 90 days to file a petition. If by April fool’s there is no filing, then we can finally put this sad, sad affair behind us and move on.